New Jersey Bans Criminal History Box for Most Private Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
August 14, 2014
New Jersey has become the sixth state to ban criminal background questions on job applications for most private employers. On August 11, Governor Chris Christie signed the Opportunity to Compete Act, which will apply to businesses with 15 or more employees over 20 calendar weeks.
Effective March 1, 2015, this "ban the box" law will prevent covered employers from asking about criminal history information during the initial employment application process. The initial application process does not end until an employer has conducted a first job interview.
The Act also prohibits an employer from publishing a job advertisement explicitly stating that the employer will not consider any applicant who has been arrested or convicted of one or more crimes. Employers found to have violated the Act will be subject to a penalty of up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.
However, the Act also includes provisions that figure to aid employers, including the following:
- If an applicant voluntarily discloses criminal history information during the initial application process, the employer may ask questions about that record;
- An employer may still refuse to hire an applicant based on his or her criminal record, provided the refusal is consistent with other laws, rules and regulations;
- Jobs sought in law enforcement, corrections, the judiciary or emergency management are exempt; and
- Any ordinance adopted by a county or municipality that conflicts in any way with the Act is preempted. (This includes Newark's "ban the box" law.)
Also notable is that the new law does not permit aggrieved job applicants to sue an employer that has violated the law's provisions. A previous version of the bill had placed additional requirements on employers, but these were not included in the final version that Governor Christie signed.
Other states that have enacted "ban the box" laws affecting private employers include Hawaii, Illinois, Massachusetts, Minnesota and Rhode Island. Meanwhile, seven states have enacted "ban the box" measures that are limited to public employers.
Nearly 70 municipalities also have restricted criminal history questions on application forms. The rationale behind these laws is to give ex-offenders a chance to prove their qualifications in an interview setting and avoid disproportionately affecting minority job applicants.